Exploitative Abuse in the Digital Economy - The Facebook Case and the Future of Competition Law -
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On 6 February 2019, the Bundeskartellamt, the German competition agency, issued its long-awaited decision on Facebook’s abuse of market dominance. Although this was not an EU-level decision, it came to the attention of competition authorities in other countries because this was the first competition law case involving the subject of data protection. In particular, there are a number of important issues in the case. First, the Bundeskartellamt’s definition of the market was based on the statutory provision of the presumption of market dominance, rather than an economic analysis of a small but significant and non-transitory increase in price (SSNIP). This opened the question of whether it is possible to accept a general definition of a two-sided market. Second, the agency’s approach to exploitative abuse in the case was based on the German case law on unfair terms for transactions, and on constitutional rights. Because it is hard to find cases on exploitative abuse anywhere around the world, this case will influence the case law development of standards of proof or benchmarks involving exploitation. Third, the intersection between competition law and data protection law is a hotly discussed area, and the Facebook case will bring further debates on the interaction of these two bodies of law. Given the significance of this case, this article aims to review it and to discuss possible consequences for the Korean competition regime.
Abstract
On 6 February 2019, the Bundeskartellamt, the German competition agency, issued its long-awaited decision on Facebook’s abuse of market dominance. Although this was not an EU-level decision, it came to the attention of competition authorities in other countries because this was the first competition law case involving the subject of data protection. In particular, there are a number of important issues in the case. First, the Bundeskartellamt’s definition of the market was based on the statutory provision of the presumption of market dominance, rather than an economic analysis of a small but significant and non-transitory increase in price (SSNIP). This opened the question of whether it is possible to accept a general definition of a two-sided market. Second, the agency’s approach to exploitative abuse in the case was based on the German case law on unfair terms for transactions, and on constitutional rights. Because it is hard to find cases on exploitative abuse anywhere around the world, this case will influence the case law development of standards of proof or benchmarks involving exploitation. Third, the intersection between competition law and data protection law is a hotly discussed area, and the Facebook case will bring further debates on the interaction of these two bodies of law. Given the significance of this case, this article aims to review it and to discuss possible consequences for the Korean competition regime.
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